I am a big fan of Kathryn Kovacs‘s important work on the Administrative Procedure Act (APA) and administrative common law (here, here, and here). So I was so excited when the editors of my institution’s main journal, the Ohio State Law Journal, informed me that they would be publishing Professor Kovacs’s latest article, Scalia’s Bargain.

In this article, Professor Kovacs continues to build on her prior theoretical work but takes a welcome doctrinal turn by exploring the 1976 amendment to the APA that added a waiver of sovereign immunity. Until now, the APA’s waiver of sovereign immunity provision had been hopelessly confusing—puzzling administrative law professors for decades and creating confusion among the lower courts. Professor Kovacs brings much clarity to the issue by explaining that the majority of federal circuit courts have gotten it wrong, as indicated by the unambiguous text and statutory context. If there were any doubt about the proper interpretation, she further argues, the proper focus should be on the public deliberation surrounding the legislation and the bargain that was struck between then-Assistant Attorney General Antonin Scalia and Senator Edward Kennedy.

Here’s the core of her argument (from the start of Part III of the paper; footnotes omitted):

The majority of courts of appeals have misinterpreted the 1976 amendment. The waiver should be interpreted to apply only to APA claims and to be limited by the other constraints in the APA, including the “final agency action” requirement. This result flows from the plain language of the waiver. The second sentence of section 702 should not be read in isolation, but rather in the context of the rest of section 702 and the surrounding sections of the APA. Even if the text were not clear, however, the history of the 1976 amendment confirms that the waiver did not throw open the courthouse doors as wide as the majority of courts believe.

My argument here should appeal to textualists and intentionalists alike. I believe that the text of Section 702 is unambiguous, and one need not consult extrinsic materials to conclude that the waiver applies only to APA claims and is contingent on the other requirements in the APA. Even if one disagrees with that conclusion, however, at most the text is ambiguous, and the history of the 1976 amendment provides compelling support for my interpretation. In other words, I do not argue here that the statutory history overrides the text, but rather that the history is reflected in the text

Circuit courts take note. And SCOTUS (and SCOTUS litigators), let’s keep an eye out for a good vehicle to clear up the confusion. For what it’s worth, the Supreme Court had a chance to resolve this confusion back in 2012 but decided against granting review. I’ve heard the Court may be short on cases…

At any rate, much of this article seeks to provide an answer to an important doctrinal question in administrative law, and that contribution in and of itself is novel and important. But what I enjoyed most about the article lies mostly below the surface and only surfaces briefly near the end: Professor Kovacs’ application of her APA-as-superstatute theory to this particular problem.

In Part IV of the current draft, Professor Kovacs focuses on the importance of courts respecting public deliberation and compromise in the context of the APA. I love that she uses this context, where then-Assistant Attorney General Scalia’s correspondence with Senator Kennedy is the primary source of legislative history/public deliberation for statutory meaning. I’m sure Justice Scalia would have loved that Professor Kovacs was pushing for a proper interpretation of the APA’s waiver of sovereign immunity. But I’m also sure he would have been happier if she had stopped with the text and statutory context, and not resorted to extrinsic evidence of public deliberation.

That said, now that Justice Scalia is no longer on the Court, the likelihood of the Supreme Court embracing a superstatute approach to interpreting the APA (and other superstatutes) goes from remote to at least possible. If courts begin to embrace this approach, we will then have to begin struggling with the details of this interpretive methodology. For instance, we would need to figure out what counts as “public deliberation” for purposes of this interpretive theory of the APA. What counts as “public”? Does that include purely intergovernmental (and arguably nonpublic) negotiations? And what counts as “deliberation”? Again, do such deliberations need to be in congressional hearings and floor proceedings? Or can they take place behind closed doors, between the branches of government, or even with outside groups such at the ABA? Do some types of “publics” and “deliberations” carry more weight than others?

Fortunately, to resolve this statutory interpretation puzzle as to the scope of the APA’s waiver of sovereign immunity, I don’t think we need to embrace a new theory of interpretation. Professor Kovacs makes a compelling case that the text and statutory context provide an unambiguous answer (and if they didn’t, we still apply the substantive canon that any ambiguities should be construed against a waiver of immunity). I hope litigators cite, and courts rely on, Professor Kovacs’s article the next time they are confronted with this question.

The current draft of the paper can be downloaded (for free) from SSRN here, and here is the abstract:

In 1970, Senator Edward M. Kennedy introduced a bill to add a waiver of sovereign immunity to the Administrative Procedure Act. A series of Supreme Court opinions had left sovereign immunity doctrine hopelessly muddled, making it unclear when plaintiffs could challenge federal agency actions in court. Initially, Kennedy’s bill languished because the Executive Branch opposed it. Then Antonin Scalia became Assistant Attorney General, and the Executive Branch changed its position. As Scalia explained, however, the Executive Branch conditioned its support for the bill on the understanding that the amendment would not throw open the courthouse doors for claims against the United States, but would be subject to the other limitations of the APA. The groups that had drafted the bill shared that understanding. Senator Kennedy accepted Scalia’s conditions, and the bill finally passed in 1976.

Unfortunately, the amendment that was meant to clarify the law has not done so. Instead, the question of how to interpret the APA’s waiver of sovereign immunity has generated inter- and intra-circuit splits and general confusion. Moreover, the majority of the federal courts of appeals have ignored Scalia and Kennedy’s bargain and held that the waiver of sovereign immunity in the APA is not constrained by the other limitations in the APA. This article – the first to address this issue – argues that the majority approach misinterprets the waiver and raises serious concerns related to separation of powers, democratic legitimacy, and the institutional competence of the courts, and should not stand.

This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.